The lingering effects of Rance
In July of last year, I highlighted a 1st District case, State v. Hundley, to focus on the absurdities of Ohio's law on allied offenses as articulated by the Supreme Court's decision in State v. Rance. No doubt deeply influenced by my insightful analysis, this past April the Supreme Court clarified Rance in State v. Cabrales, which I discussed here. From a couple of court of appeals decisions last week, it appears that the 1st District got the memo, and the 8th did not.
The 1st District's decision in State v. Moore involved the exact same issue as Hundley: Moore, like Hundley, had killed someone while driving drunk, although Hundley had wracked up a body count four times higher. Both were prosecuted under the two separate sections of the aggravated vehicular homicide statute, one of which prohibits driving drunk and the other driving recklessly. In Hundley, the court applied the Rance test: if a comparison of the elements of the two crimes "in the abstract" shows that the elements don't correspond to the extent that one will result in the commission of the other, the two aren't allied offenses. The Hundley court concluded that the elements didn't correspond to that degree: one could drive recklessly without driving drunk. Over Judge Painter's vigorous dissent, Hundley's convictions of eight counts of AVH were upheld, despite there being only four dead people.
Painter got his revenge last week, writing for a unanimous court in Moore. He expressly overruled Hundley, relying on Cabrales to hold that "when a defendant commits one act and kills one person, that defendant may be convicted and sentenced for only one aggravated vehicular homicide."
By comparison, the 8th District's decision in State v. Carter is frankly puzzling. Carter had accosted a passenger at a bus stop, then rushed at him with a pair of scissors in an effort to rob him. The passenger suffered a serious cut to his left arm and some minor cuts on his right arm, which was sufficient to permit the judge to convict him of two counts of felonious assault: one for using a deadly weapon, and one for causing serious physical harm. The court upheld this, relying on the "element comparison" of Cabrales. Judge McMonagle argued in dissent that Cabrales had articulated a more "holistic" approach, as the 8th District had held a few weeks earlier in State v. Sutton, where it ruled that convictions of felonious assault had merged with convictions for attempted murder, and that the felonious assault convictions in Carter should merge, too.
McMonagle's right, but the majority isn't entirely at fault here. Prior to Rance, courts had little trouble sorting out the issue of merged offenses. The first step was the comparison of the elements: if one crime couldn't be committed without committing the other, then the crimes were of similar import. The court then proceeded to the next step: whether the crimes were committed separately or with a separate animus.
Rance threw a monkey wrench into the proceedings by declaring that the first step was to be done without reference to the actual facts of the case. The result, as the court confessed in Cabrales, was "inconsistent and absurd results." Rather than jettisoning the "abstract elements" language that was causing all the trouble, however, the court sidestepped the issue with talk of "holistic" approaches.
Cabrales isn't the last word on this subject: on September 30, the Supreme Court's going to hear oral argument in the 2nd District's decision in State v. Winn. In that case, the defendant had broken into a woman's home and forced her a few steps from her hallway to the bedroom. He'd been convicted of aggravated robbery and kidnapping, but the appellate court held that the two offenses merged, in line with State v. Logan, a pre-Rance case that had held that kidnapping was implicit in every robbery, and that here the incidental movement of the victim wasn't enough to constitute a separate offense. The Supreme Court has accepted the state's appeal, which argues that State v. Logan should be overruled, and that since an abstract comparison of kidnapping with robbery shows the elements of the two don't correspond, they're never allied offenses. Stay tuned.